WHETHER CIVIL LAW OR COMMON LAW IS FOLLOWED IN INDIA

B.A.LL.B (INTEGRATED LAW DEGREE COURSE)

LAW AND ECONOMICS (V SEMESTER)

“PROJECT WORK”

“WHETHER CIVIL LAW OR CRIMINAL LAW IS FOLLOWED IN INDIA ”

SUBMISSION TO: SUBMITTED BY:

MR. S.K. TANAN RAJAT KAUSHIK

FACULTY OF LAW AND ECONOMICS 17RU11020

DESIGNATION: ASSISTANT PROFESSOR SESSION:-2017-2022

SEMESTER:-V
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ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to MR. S.K. TANAN
for inspiring me and guiding me during the course of this project work and also for her
cooperation and guidance from time to time during the course of this project work on the topic
“WHETHER CIVIL LAW OR CRIMINAL LAW IS FOLLOWED IN INDIA”.

Date of Submission: 20-11-2019

Name of Student: RAJAT KAUSHIK

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INTRODUCTION-

India became an independent democratic republic in 1947 and its constitution, which came into
force on 26th November 1949, is the supreme law. India has a common law legal system whose
infrastructure bears the influence of British colonial rule. The constitution is based on
the Government of India Act 1935 passed by British Parliament. The Indian constitution lays out
a federal Union of 28 States, 6 union territories and 1 national capital territory. The Union and
States have separate executive and legislative branches, whereas the territories are ruled by the
national government. Law generated by the Union is superior to that of the States.

The nominal head of the Union executive is an elected President, but the Prime Minister, leader
of the majority party and head of the Union Council of Ministers, is more politically
powerful. India has a bicameral Parliament whose upper house is the Council of States (Rajya
Sabha) and whose lower house is the House of People (Lok Sabha). The State executive is
headed by a Governor, and while most have a unicameral legislative body called the Legislative
Assembly, some are bicameral with a Legislative Council as well.

Apart from the English influence, personal laws are frequently based on Hindu and Islamic law.
Hindu law has been codified and Islamic law is based on authoritative commentaries and
precedents. (The LawBod has works dealing with these great religious legal systems with shelf
marks starting Ancient Hindu and Islamic).For more information, see the section on Religion &
law.

WHETHER THE COMMON LAW OR CIVIL LAW IS BEING FOLLOWED IN INDIA

India is a common law country. This is primarily due to the absence of inquisitorial system and
Judges hear the parties, act as referee to allow boh sides equal opportunity and decide on the
basis evidences presented. On the contrary, in civil law system, which is a inquisitorial system,
judges play a role of both referee and interrogator.

But with the introduction of PIL and several major reforms in judiciary as a part of Judicial
Activism, today Indian Judiciary has a more mixed approach.
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Judges now have active involvement in matters (particularly PILs) and this somewhere reflects
Civil Law system attitude, but since precedence is the norm of Common law, therefore India is a
common law country with elements also incorporated from other legal system.

As far as religious law is concerned, India doesn't abide by that and adhere to the personal law,
which are provided to court through a legislation. Courts have adhered to the statutes for
interpretation of matters before it when it comes to religion.

In Shah Bano Case, the Court did prove the above point, where it went against the customary
practice of Muslims and asked the husband to pay for maintenance u/s 125 of CrPC to his
divorced wife, which created much controversy, and because of which Rajiv Gandhi was forced
to bring a law to overturn Court's ruling.

So approaches of Indian Judiciary in issues of religion is not in strict terms determined by any fix
legal system, but only relies upon the statutes and Fundamental Rights provided under
Constitution to ascertain the outcome of any issue before it.

COMMON LAW: DOES IT APPLY IN INDIA?

The application of common law has been overarching in the Indian context; it has been
enshrined in the Indian legal system over the space of two centuries by the English to the point
that one can’t allocate an individual identity to Indian jurisprudence. Thus it can be said that
common law has been applicable here though in a different format than that of England as the
needs and demands of the Indian society were different from that of the English. It is to be found
out that much of the law compiled in codes we have today were primarily derived from the
Common Law principles. The basic statutes governing civil and criminal justice are the Indian
Penal Code, 1860, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the
Code of Civil Procedure, 1908. It has already been discussed how these laws came into being,
one thing can be said about these legislations is that they have stood the test of time with
minimal amendments. Codification of laws made the law uniform throughout the country and
fostered a kind of legal unity in fundamental laws. The Codes apply uniformly throughout the
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Another contribution to Indian legal system by Common Law has been the adversarial system of
trial. In this system the accused is presumed to be innocent and the burden is on the prosecution
to prove beyond reasonable doubt that he is guilty. The accused also enjoys the right to silence
and cannot be compelled to reply. The truth is supposed to emerge from the respective versions
of the facts presented by the prosecution and the defence before a neutral judge. Both the parties
have a right to question their witnesses and the opposing side has a right to test their testimony
by questioning them. . The judge acts like an umpire to see whether the prosecution has been
able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused, his
ultimate duty being to pronounce the judgment regarding the matter.

The system of Precedents derived from the Common Law too has wide application within the
Indian legal system, a precedent in Common Law parlance means a previously decided case
which establishes a rule or principle that may be utilized by the court or a judicial body in
deciding other cases that are similar in facts or issue. Initially the English judges and barristers
presiding and practicing in the Indian courts followed the decisions of the courts in England,
thus slowly the concept of precedents came to be ardently followed within the Indian courts. This
law has been carried forward in the present day Legal system as in regard to the judgments of the
Supreme Court of India the Indian Constitution provides that “The law declared by the Supreme
Court shall be binding on all courts within the territory of India.”[3]Hence it can be said
unequivocally that Common Law has wide application within the Indian Legal fold as many of
the features of this system have been adopted and further developed from that of The English
Common Law System, even though its application hasn’t been discussed in entirety and only the
major principles derived from it have been discussed.

Thus it can be said that common law traces back its origins to England and is primarily a method
of administering justice, which has incorporated different aspects of the legal pedagogy and
practice with the help of deliberations of laymen and the learned over the course of time. In the
Indian context the common law initially was applied for the convenience of the English, so they
could govern their territories properly but, as they became the overlords of India the common
law became common for Indians. There developed a symbiotic relationship between the Indian
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customary law and the common law which gave birth to the modern day Indian legal system.
Hence we can say India has an organic law as a consequence of the common law system

INDIAN COURT STRUCTURE-

The judiciary is independent rather than federal in structure. The highest appellate court of the
judiciary is the Supreme Court of India, which often decides the legislative powers demarcated
by the Constitution for Union and States. Prior to independence in 1947, the highest appellate
court was the Privy Council in London and its decisions can still be binding unless overruled by
the Supreme Court. High Courts are situated in each State, with subordinate criminal and civil
courts.

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CONCLUSION-

While comparing legislation with common law, it can be concluded that statutes generally have
the power to change the established common law, but the common law cannot overrule or
change statutes. A statute can only be amended or overruled by a later and a separate statute.
This relationship reflects the legal & political doctrine of – parliamentary sovereignty- the
recognition & acceptance that Parliament is the supreme law making body of the land though,
such an authority may not be absolute and it may be limited by some other exercises.
Nevertheless, save for these possible limits in extreme circumstances the judges must normally
apply statutes, even if they are contrary to the established common law.

So, I conclude that even though the Indian Legal System is based upon the structure of common
law, but at the present time legislation or the statutory law have more influence and it prevails
case law.

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